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United States of America v. Sergey Aleynikov

December 14, 2010


The opinion of the court was delivered by: Denise Cote, District Judge:


On October 25, 2010, the defendant filed a motion in limine to suppress statements he made to agents of the Federal Bureau of Investigation ("FBI") following his arrest on July 3, 2009. The defendant contends that his post-arrest statements were taken in violation of New York Rule of Professional Conduct 4.2(a) ("Rule 4.2(a)"). Defendant's motion to suppress his post-arrest statements was denied at a final pretrial conference on November 19, 2010, with an Opinion to follow. This is that Opinion.


On Friday, July 3, 2009, at 9:20 p.m., the defendant was arrested at Newark Airport upon his return from a meeting in Chicago with his new employer, Teza Technologies LLC. The defendant was then transported to the FBI office in New York City, where he waived his Miranda rights and agreed to answer questions without an attorney present. The FBI agents began their questioning of the defendant at approximately 10:15 p.m. At 10:34 p.m. that evening, Sabrina Shroff, the Federal Defender on duty for Saturday presentments, attempted to send an email to the Assistant United States Attorney ("AUSA") on duty requesting that any questioning of the defendant cease. This email was rejected by the computer system because it was sent to an incorrect email address. At 11:36 p.m., Ms. Shroff resent her email to the AUSA on duty. Following hours of questioning, the defendant signed a written statement at 1 a.m. on Saturday, July 4. Ms. Shroff's email finally reached the AUSA in charge of the defendant's case, Mr. Facciponti, at 1:29 a.m., only sixteen minutes before the FBI interview with the defendant ended at 1:45 a.m. and forty-five minutes after the defendant signed a written statement. Mr. Facciponti responded by email to Ms. Shroff at 2:03 a.m.; he refused her request to stop the questioning of the defendant.

On Saturday, July 4, the defendant was presented before Magistrate Judge Fox. Judge Fox determined that the defendant did not qualify for appointed counsel, but because the defendant had not yet retained counsel of his own, Judge Fox appointed Ms. Shroff counsel solely for the bail proceeding. The defendant subsequently retained counsel on May 4, 2010.


The defendant argues that the post-arrest statements made to FBI agents were taken in violation of Rule 4.2(a) because the AUSA refused to stop the questioning after receiving Ms. Shroff's request. The Government contends that the motion is untimely and without merit.

1. Timeliness At an initial pretrial conference on February 17, 2010, the

Court set a July 16 deadline for the filing of all pretrial motions. A conference was also held on May 4 for the purpose of substituting counsel; the Court reiterated the July 16 deadline at that time, and new counsel agreed to that date. Reference was also made to the July 16 deadline at a June 29 conference with the parties.

On July 16, the defendant moved to dismiss the Indictment, but did not move to suppress his post-arrest statements. Indeed, the defendant did not move to suppress the post-arrest statements until October 25, when the motions in limine were filed. Defendant's motion to suppress is therefore untimely.

"A party waives its ability to move to suppress evidence if it fails to do so by the pretrial deadline set by the court, except that the district court may grant relief from that waiver for 'good cause.'" United States v. Kopp, 562 F.3d 141, 143 (2d Cir. 2009) (Per Curiam) (quoting Fed. R. Crim. P. 12(e)). Defendant does not explain why he waited until his motion in limine to make the suppression argument, and the case law is clear that a strategic decision by counsel to delay the pursuit of a suppression claim is insufficient to constitute "good cause." Id.

2. Merits Even assuming that the defendant's motion was timely, however, there is no basis for suppression here. Rule 4.2(a) governs a lawyer's communication with persons who are already represented by counsel. It also acknowledges that other bodies of law may authorize communications with represented parties that would otherwise be barred by the Rule. The Rule provides, In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

N.Y. Rule Prof. Conduct 4.2(a) (Emphasis supplied).

As the Third Circuit noted in United States v. Balter, 91 F.3d 427 (3d Cir. 1996), "with the exception of the Second Circuit, every court of appeals that has considered" the issue has held that Rule 4.2(a) does "not apply to pre-indictment criminal investigations by government attorneys. And even the Second Circuit has held that ordinary pre-indictment investigation[s] . . . fall[] within the 'authorized by law' ...

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